Unofficial Opinion 99-3

June 15, 1999

To:

State Senator District 47

Re:

There is no general prohibition against a teacher employed by a local board of education serving as a county commissioner. However, such a prohibition could arise under the terms of a local law or because the county commission is able to directly affect the terms or conditions of the teachers employment.

You have asked for an opinion whether a teacher employed by a local board of education may serve as a county commissioner, and as chairman of the commission. In my opinion there is no prohibition against that dual service unless it arises by local law or local circumstance.

As you point out, the teacher in this instance is employed by the local board of education. The county is a separate entity from the local school board and the local school board is an independent entity. See Ga. Const., Art. VIII, Sec. V, Para. I; O.C.G.A. § 20-2-50. Although O.C.G.A. § 20-2-51(c) prohibits a teacher from being a member of the school board that employs him, there is no general statutory prohibition against a teacher serving simultaneously as a member of the county board of commissioners. Cf. Turner v. Lashley, 239 Ga. 678, 680 (1977).

It is possible, however, that dual service as a teacher and county commissioner could be prohibited by a local act of the General Assembly or by a common law conflict of interest. The test for determining whether there is a common law conflict is whether the duties of the two offices are incompatible. See 1976 Op. Att’y Gen. p. 355, 365 “Conflicts of Interest of Public Officers, Employees and Agents.” In the instant circumstance the most likely incompatibility would arise if the teacher in his role as county commissioner could affect his personal interest in his employment as a teacher by affecting his pay or other condition of employment. Such a conflict is sometimes referred to as a master-servant conflict of interest. See Columbus, Ga. v. Board of Water Commissioners, 261 Ga. 219 (1991); 1990 Op. Att’y Gen. 90-25.

The county commission does have a role in collecting local property taxes for the benefit of the schools. It must take the recommendation of the local school board and determine the millage rate that will be levied on local property owners for education. See O.C.G.A. §§ 48-5-400, -401. Although that action by the county commission does affect the overall budget of the local school board, it does not directly determine the salary of teachers. The minimum salary level is set by the State Board of Education, O.C.G.A. § 20-2-212(a), and the local supplement is set by the board of education. See O.C.G.A. § 20-2-212(b). Because the ability of a county commissioner to affect the salary of any particular teacher is so indirect, it does not appear to constitute a common law conflict of interest. See 1977 Op. Att’y Gen. 77-47.

Therefore, it is my unofficial opinion that unless there is a local law that prohibits employees of a local board of education from serving as county commissioner, or unless there is some local circumstance that would allow the county commission to directly affect the pay or other conditions of employment of teachers employed by the local school board, a teacher may serve as a member of the county commission.